Ramesh Chandra Roy v. Hemendra Kumar Roy

The Judgment of the Court was delivered by

R.C Mitter, J.:— Kabiraj Haran Chandra Chakravarti was the proprietor of 12 annas odd gandas share of a Zemindary known as Taraf Rajpur bearing Touzi No. 3600 of the Nadia Collectorate. His proprietary interest was recorded in separate account No. 1. The remaining share of that estate belonged to Bodh Singh Bothra and Haribhusan Roy and others whose interests were recorded in two other separate accounts Nos. 1 and 2 respectively. The yearly revenue payable for Haran's share, that is for separate account No. 1, was Rs. 3793 odd. He had let out his share in patni to Priya Kristo Mazumdar, Fronab Mozumdar and others, hareafter called the Mozumdars, at an annual rent of Rs. 7993 odd. The Mozumdars were also patnidars of separate account No. 2.

2. On and January 1935, Haran Chandra executed a deed of trust (Ex. 13) in respect of his said zamindary and another item of property, a small jote near the town of Rajshahi. That document was registered at Rajshahi. By that deed he appointed himself and four other persons as trustees, namely, Kumar Hemendra Roy of Dighapatia, Mr. Kishoty Mohan Chawdbury and Mr. Bhabani Govinda Chowdhuri two Benior and respected pleaders of the Raj ehahi Bar and his son Jagadish Chandra Chakravarty. The trust was for the maintenance of an Ayurvedic School and Hospital to be established in the town of Rajshahi after the name of his parents. The trust would hereafter be called the Ayurvedic trust.

3. The patnidars having made default in the payment of patni rent Haran took proceedings for the sale of the patni under Regulation 8 of 1819. It was eventually sold at those proceedings and was purchased by himself on 15th May 1935. Fourteen days later Haran died. He left behind six sons—Suresh by his first wife and Komesh, Jagadish, Gobinda-Narayan and Sachin by his second wife. He left two daughters and a number of grand-children amongst whom was Upendra alias Bahadur, the eldest son of his son Suresh. Some years before his death he had executed a will which was registered. By the will he appointed his friend Durga Kanto Mozumdar and Jagadish and Upendra executors. He disinherited his sons, Ramesh and Gobinda. Immediately after his death disputes arose between his sons. The executors applied for probate in the Court of the District Judge Rajshahi, numbered as probate case no. 13 of 1935. Ramesh and Gobinda opposed the grant. While the probate proceeding was pending in the Court of the District Judge as a contested proceeding the parties were brought together mainly by the efforts of Kabiraj Jyotish Chandra Saraswati, an old pupil of Haran and a well wisher of the family. As a result of his efforts, a settlement was brought about, and a deed of family settlement (Ex. 12) was executed on 20th September 1935. The parties to that document were the six sons of Haran, his two daughters, his grand son Upendra and the executor Durga Kanto Mozumdar. The will was given a go-bye, and the probate proceedings were dropped. His estate was partitioned among the six sons on the footing of intestacy. Provisions were also made for his two daughters, who had been given small legacies by the Will, and certain other claims of the sons of Haran and of his grand-son, Upendra were settled. In para. 11 of that document the parties admitted the validity of an Arpannama by which Haran had dedicated some properties for the worship of a deity, Annandmoyee Thakurani, established by him and other ancestral deities and the validity of the Ayurvedic trust also. The Mozumdars filed a suit in 1935 to set aside the patni sale against the sons of Haran. Later on, they added the trustees as parties defendants. In that suit only Jagadish and Suresh appeared. The suit was decreed on compromise arrived at between the Mozumdars and Suresh and Jagadish and was dismissed against the other defendants by a decree dated 5th May, 1936. By the compromise Suresh and Jagadish agreed to the reversal of the patni sale. It does not appear that in the matter of the compromise Jagadish acted in his capacity as trustee and even if he did that compromise was ineffectual as against the trustees as a body, because the remaining trustees had not joined in that; compromise.

4. Notwithstanding the execution of the deed of family settlement litigation again started. Narayan and a daughter of Haran applied for letters of administration with a copy of the will annexed and later on a suit was filed by Narayan and that daughter of Harau to set aside the deed of family settlement.

5. During Haran's life-time the names of the trustees had not been mutated as proprietors of louzi no. 3600/1 in the Collector's register in the place of Haran. After his death, Jyotish Saraswati was appointed by the surviving trustees in the vacancy caused by his death and the then trustees applied on 30th October 1935 for registration of their names under the provisions of the Land Registration Act and a Mutation case no. 277 of 1935–1936 was started. The Mozumdars and Ramesh, Gobinda and Sachin filed objections to that application. Ramesh also filed an independent application for mutation. The Deputy Collector by his order dated 16th September 1936 refused to register the names of the trustees and ordered the registration of the names of the sons of Haran. Against that order a memorandum of appeal signed by all the trustees including Jagadish was filed before the Collector. On 18th November 1936 Jagadish made a formal application to the Collector stating that he had not joined the appeal and that his name had been unauthorisedly used in the memorandum of appeal. This application was followed by another application dated 15th December 1936 by which he formally withdraw from the appeal. On 16th January 1937 the Collector made a reference to the civil Court which decided the reference in favour of the trustees. This decision was given on 21st April 1938, long after the sale of separate account no. 1 at a revenue sale which was held on 22nd June 1937. That sale was for the default of March Kist of 1937. The arrears of revenue for the said Kist was Rs. 1467-6-6. At the said sale defendant 1, Ramesh Chandra Roy, was declared to be the purchaser. A sale certificate has been issued to him by the Collector after the trustees had unsuccessfully appealed to the Commissioner of the Presidency Division and to the Board of Revenue. The price paid was Rupees 1650. Rupees 170-13-0 were the arrears of cesses, so that the price paid just covered the arrears of revenue and cesses. There cannot be any doubt that the property was worth many times more. Its net income was more than Rs. 4000 per year and on the lowest computation its real value would be above Rs. 70,000. In fact Haran had purchased the same by private treaty for Rupees 78,000.

6. On 7th January 1939, the trustees, except Jagadish, filed the suit to which this appeal relates. The parties defendants were Ramesh Chandra Roy, the auction purchaser at the revenue sale who is defendant 1 and all the six sons of Haran. Jagadish has also been made a defendant both in his personal capacity and in capacity as trustee. The suit is for setting aside the revenue sale, alternatively for a re-conveyance from the purchaser, on the ground that the purchaser was the benamidar of four of the sons of Haran, namely, Ramesh, Gobinda, Jagadish and Sachin and that the sale was brought about by fraud practiced by them. The learned Subordinate Judge decreed the suit. He held that the sale had not been conducted in accordance with law. He also found that defendant 1 was benamidar of those four sons of Haran and that the sale was brought about by fraud. No decree for reconveyance was passed as the suit was decreed on the finding that the revenue sale was bad, as in the opinion of the learned Subordinate Judge it had been conducted not in accordance with the provisions of Sections 6 and 14 of the Bengal Land Revenue Sales Act (XI[11] of 1889). Defendant 1 has filed this appeal. The points raised by him are: (i) that the plaintiffs have No. locus standi to maintain the suit; (ii) that the conclusion of the learned Subordinate Judge that the sale had been conducted not in accordance with s. 14 of Act XI [11] of 1859 is wrong; (iii) that assuming that S. 14 had been contravened the sale cannot be set aside at the suit of the plaintiffs in view of s. 33 of the said Act; (iv) that the learned Subordinate Judge is wrong in holding that the notification for sale issued under s. 6 was materially defective: (v) that the finding of the Subordinate Judge that defendant 1 was the benamidar of the said four sons of Haran is wrong; and (vi) that in any event there is no evidence which would support the case of fraud as alleged by the plaintiffs.

7. For the reasons hereafter appearing we agree with the appellant's advocate's contention on points Nos. 2, 3 and 4 but cannot accept his contentions on the other points. The decree as made by the learned Subordinate Judge will therefore have to be set aside but the plaintiffs' alternative prayer—prayer (f)—will have to be granted with some modification.

8. The first point has been urged in the following manner. The plaintiffs and defendant 6 (Jagadish) cannot claim to be trustees as (a) the trust deed (Ex. 13) represented a fictitious transaction, (b) that even if Haran intended to create a trust, there is no trust in law as the instrument has no operation in law on the ground that it was not validly registered and (c) that in any case the property in suit and the other property mentioned in the trust instrument had not vested in the persons designated in the instrument as trustees, that is to say, in plaintiffs 1 to 3 and defendant 6 and in plaintiff 4 also who was nominated as a trustee after Haran's death by the so-called surviving trustees.

9. Point I(a): Touzi No. 3600/1 belonged to the Mozumdars. They borrowed Rs. 40,000 from Haran on the security of that property. They could not repay the loan. Ultimately they sold the property to Haran for Rs. 78,000. The consideration was made up of Rs. 40,000 the principal of the loan and of Rs. 38,000 which represented the arrears of interest. On the date of the conveyance he granted a patni of the said property to the Mozumdars reserving a net profit of Rs. 4000 a year. Income-tax was therefore payable by Haran on the said sum of Rs. 38,000. In 1934 proceedings for assessment of incometax were going on and Haran was seriously thinking about the means to be adopted to evade payment of income-tax on his income from money-lending business. The correspondence between Haran and his other debtors and also with the Mozumdars conclusively establishes that much. In fact he wanted the Mozumdars to swear an affidavit which he expected would help him in that respect. The Mozumdars refused to comply. There is no direct evidence as to the contents of that affidavit, but it is not difficult to infer what its nature was. Haran wanted an affidavit from them to the effect that the sum of Rs. 40,000 which they had borrowed was trust money, the trust being for the Ayurvedic School and Dispensary. The case before the Income-tax Officer was fixed for 17th December 1934. The trust deed, Ex. 13, was executed on 2nd January 1935 after he had obtained a postponement from the Income-tax Officer. The document was drafted in Calcutta and was executed there on that date. It was sent for registration to Rajshahi and was registered the next day in that place through Haran's ammuktear, Akhil Chandra Bhattacharji. The document recited that the said sum of Rs. 40,000 was set apart by him years back and was made trust money for an Ayurvedic school and as that sum was considered insufficient for the School he had increased it by investments. If those recitals were true or believed by the Income-tax Officer the instrument would have been a complete answer to the attempt of the Income-tax Officer to assess Haran on the said sum of Rs. 38,000. We have no doubt, in view of the evidence in the case that those recitals were false and were put in by Haran to evade income-tax. There was no trust before 2nd January 1935. The question is whether a trust was created on that date by that document. An intended fraud on the income-tax authorities would not necessarily prove that Haran never had the intention of creating trust by that document, and that document represented a fictitious transaction but if there was nothing else in the evidence that fact would be a strong circumstance in support of the appellant's contention. The evidence, both oral and documentary, is however overwhelming. That evidence establishes that a real trust was intended by Haran and that exhibit 13 did not represent a fictitious transaction.

10. The important oral evidence is of Mr. Kishori Mohan Choudhury. He is a very old and respectable man and a leading pleader of Rajshahi Bar. Nothing has been shown to us to impeach his credit. He is no doubt one of the plaintiffs but that fact would not in our judgment be sufficient for discarding his evidence as false and interested. He says that long before the execution of that deed, Haran bad talks with him wherein he expressed his intention of creating an endowment for the advancement of the Kabiraj system. Haran was himself an eminent Kabiraj. He had become very rich by reason of his phenomenal success in his profession. The properties dedicated by exhibit 13 formed only a small part of His properties. An all Bengal Ayurvedic Conference was held at Rajshahi in the last part of December 1934 and Haran was its President. At that conference Haran publicly announced that he would endow immoveable properties fetching an annual income of Rs. 4000 to Rs. 5000 and a substantial amount of Government Promissory Notes for the establishment of an Ayurvedic School, charitable dispensary and a hospital. Within a week of the announcement he executed Ex. 13. If his sole intention in executing that document had been to evade income-tax on Rs. 38,000 he would not have made that public announcement in the presence of a gathering of educated men. Moreover, he would have taken care to make members of his family or his underlings trustees — not men of the position of the Kumar of Dighapatia or of Kishory Babu or Bhawani Babu and would not have apprised those gentlemen of their appointments as trustees. These are strong circumstances against the contention of the appellant. The subsequent conduct of Haran and of the trustees named in the instrument lends considerable strength to the case of the plaintiffs-respondents. The documentary evidence discloses that the trustees held meetings and took steps to draw up a scheme of management of the institutions. This is disclosed by the minutes of their meetings. Three students were admitted and steps were taken for the preparation and distribution of medicine. In his letters Haran evinced a keen interest and became impatient as in his opinion the work of the Auyrvedic trust was not being pushed through efficiently or at great speed by Jyotish Saraswati, who was left in charge by him. He offered the latter the post of a professor at the remuneration mentioned in the instrument but was disappointed by the refusal of the offer. He also expressed disapproval of the selection of pupils by Jyotish and went so far as to say that if the school could be not managed efficiently at Rajshahi or if the right type of pupils could not be got there he would have the school removed to Calcutta, where he expected to get good men at reasonable remuneration as teachers and also diligent and deserving pupils. No doubt no at-tempt was made by him in his life-time to get his name registered as trustee or the names of the other four trustees registered in the Collector's register but he died within six months of the execution of the document, that is before the time for registration had ran out. He took astam proceedings against the patni in his personal capacity but that could not be avoided as his name was then registered in the Collector's register as the proprietor in his personal capacity. We hold in agreement with the learned Subordinate Judge that Ex. 13 represented a real transaction. There was a real intention on the part of Haran to dedicate the properties in trust for the Ayurvedic school, dispensary and hospital from the 2nd January 1935 and that document was acted upon immediately after its execution.

11. Point I(b): The trust deed was registered at Rajshahi. The district Sub-registrar of Rajshahi who registered it, would have jurisdiction to register it only by reason of the property of Schedule Kha of trust deed, which was the only property situate at Rajshahi. The document could have been registered in Calcutta, because it is a Presidency town, but Haran had a motive in not having it registered there. He thought that the Collector of Calcutta would not pass the document written on a stamp-paper of the value of Rs. 22-8-0 only. It could have been registered in the sub-registry of Meherpore in the district of Nadia or in the sub-registry at Berhampore or at Domekol Azimgunj in the District of Murshidabad because the villeges of Touzi No. 3600/1 were within those jurisdictions. But it was not presented for registration in those places probably because it was not convenient for Haran as he had no officers in those places, and his staff of officers including his ammuktear lived at Rajshahi. The registration would be void and so the document. Exhibit 13 would not have the effect of creating a trust if either (i) the property of schedule Kha was a fictitious one or if not fictitious, did not belong to Haran (Harendralal v. Bari Dasi, 41 I.A 110 : (A.I.R (1) 1914 P.C 67)); or (ii) even if it did belong to Haran there was no intention to convey it in trust, but it was included in the deed simply to give jurisdiction to the Sub-registrar of Rajshahi. (Biswanath Prosad v. Chandra Narayan, 48 I.A 127 : (A.I.R (8) 1921 P.C 8) Collector of Gorakpore v. Ram Sundar Mal, 61 I.A 286 : (A.I.R (21) 1934 P.C 157).)

12. It is admitted that the land as described in schedule Kha of the document was not a fictitious item, it had a real existence. The question, therefore is whether it belonged to Haran at that time. The property which is small Jote known as Jote Jianat for which a small rent had to be paid to the Baja of Dighapatia belonged to Iju Sheik and others. In 1929 it was sold by them. There is no document of transfer but there is a unregistered document called “receipt of delivery of possession” (Ex. P.P). That document recites that the vendors had received the price from Jagadish, a son of Haran and possession was delivered to him. As the consideration was below Rs. 100/- no registered deed was necessary to pass title. It may therefore be taken that the title deed stood in Jagadish's name. As the father and the sons do not form a joint Hindu family, where the Dayabhaga law governs, there can be no presumption of law that the acquisition by the son was for the father or for the family. So the learned Subordinate Judge was wrong in holding the property to be Haran's by applying the presumption of Hindu Law that an acquisition in the name of a coparcener is an acquisition for the joint family. The presumption would be the other way, namely, that the apparent state of things must be presumed to be the real, (Sarada v. Mahananda, 31 Cal. 448, Protap v. Sarat, 33 C.L.J 201 : (A.I.R (8) 1921 Cal. 101)). Jagadish must therefore be presumed to be the real owner till the contrary is proved. There is no evidence that Jagadish was unable to pay the price, which was only Rs. 10, from his own resources. This also is in favour of the real title being in Jagadish. But there is unimpeachable documentary evidence indicating that the real owner was his father and that he was only a benamidar. The superior landlord namely, the Raja of Dighapatia, has produced his Karchas from 1340 to 1344 B.S They cover the period commencing from 1337 B.S which corresponds to 1930–1931. The very first Karcha (Ex. 5a) which followed closely the sale by Iju Sheikh and others shows that the property was in the Zimla of Haran. The meaning of that entry is clear. The landlord did not recognise the purchaser from Iju and others as his tenant and so did not record his name in the place of his recorded tenant but made that note to indicate that the jote then belonged to Haran by a transfer. This is good contemporary evidence of a time when there was no controversy as to the real title to that item of property of almost negligible value. We also fail to understand why Haran would include that small item in the trust deed if it did not really belong to him. He had many other properties in the District of Rajshahi which would have equally served his purpose of having the document registered by the Sadar Sub-Registrar of Rajshahi. Besides the conduct of Jagadish is significant. He admitted the Auyrvedic trust to be valid in the deed of family settlement (Ex. 12). In this suit he is a defendant. He has not claimed the property to be his in his written statement and has not deposed. In these circumstances we hold that the property belonged to Haran at the time when he executed the trust deed, Ex. 13.

13. The next question is whether he intended to convey it to the trustees for the trust. If he did there would be no fraud upon the Registration Act and the instrument would be regarded as validly registered. The small value of the property would be an element to be considered in determining the question but it would not be a conclusive one. It was capable of enjoyment. It was not like the small platform in the Collector of Gorakpore's case, (61 I.A 286 : A.I.R (21) 1934 P.C 157) to which the purchaser could have no access and so could have no enjoyment; that fact was the essence of the thing and showed that there was no real intention on the part of the vendor to convey and no real intention on the part of the purchaser to acquire title to it. Plot No. Kha of the trust deed, ex. 13, covered an area of about 10 cottas. It is in the outskirts of the town of Rajshahi, where the charitable dispensary and the hospital was to be established. It was capable of beneficial use by the trustees. In fact the trust deed states that it was being utilised at the time by Haran for growing medicinal plants. In these circumstances we hold that there was a real intention to convey it to the trustees. Accordingly the cases relied upon by the appellant, namely, Biswanath Prasad v. Ghandra Narayan, 48 I.A 127 : (A.I.R (8) 1921 P.C 8) and Collector of Gorakpore v. Ram Sundar Mal, 61 I.A 286 : (A.I.R (21) 1934 P.C 157) do not help the appellant.

14. Point I(c). There is no substance in this point also. Paragraph 3 of the trust deed vests the properties in the trustees in express terms. We accordingly hold that the plaintiffs have the right to maintain the suit. The suit is not bad in form. Ordinarily trustees must act in a body. So if a suit has to be brought all must join as plaintiffs, but there is an important exception to the rule, namely, the suit would be a good one if some of the trustees bring the suit with the remaining trustees joined as defendants, where the latter are either unwilling to join as co-plaintiffs or where they have done some act precluding them from being plaintiffs Rajendra Nath Dutt v. Sheikh Mohomed Lal, 8 I.A 135 : (8 Cal. 42 P.C), Kokilasari Dasi v. Mohunt Rudranand Goswami, 5 C.L.J 527. Here Jagadish, the remaining trustee, has been made a defendant and there are material allegations in the plaint against him which would have made it impossible for him to become a co-plaintiff. His past conduct, especially in relation to the Land Registration case, precluded him from being a co-plaintiff.

15. Points II & III.—The sale of separate account no. 1 was held by the Collector on 22nd June 1937 for the default of the March Kist of that year. The sum in arrear was Rs. 1467 odd which was payable within 28th March 1937, the date fixed by the Board of Revenue under S. 3 of Act XI [11] of 1859 (hereafter called the Act). According to the engagement made by the Zemindar at the time of the Permanent Settlement revenue was payable in monthly kists according to the Bengalee calendar. The Dowl Kistibandi of the Permanent Settlement is Exhibit J. The money payable within 28th March 1937 therefore represented the instalments for Pous, Magh and Falgoon 1343 B.S, which according to the provisions of S. 2 of that Act became arrears on the 1st days of Magh, Falgoon and Chaitra 1343 respectively, and as the last mentioned date corresponded to 14th March 1937 the estate became liable for sale after 28th March 1937. On the date when the Collector actually sold the said separate account the instalments for Chaitra 1343 and of Bysack and Jaistha 1344 were payable in terms of the Dowl Kistibandi, Exhibit J. but no sale could be held for the arrears of those three months before 28th June 1937, as that was the date fixed by the Board of Revenue under S. 3 for payment of those arrears. Section 14 of the Act requires the Collector to stop the sale of a separate account if the highest bid “does not equal the amount of arrear due thereupon to the date of sale,” and then to make a declaration giving option to co-sharers to purchase the share in default by paying to Government the “whole arrear due from such sharer within ten days.” If the option so given is not exercised the separate accounts are to be merged and the entire estate is to be sold, if on merging the accounts an arrear is found due. The question turns upon the meaning to be given to the phrase “amount of arrear due thereupon to the date of sale.”

16. Two views are possible, namely, that the phrase mean “the amount of arrear that fell due at the date of sale according to the Dowl Kistibandi of the Permanent Settlement” or “the amount of arrears for which a revenue sale could be held on the date of the sale.” In short the question is whether, that phrase has to be interpreted in terms of S. 2 or of s. 3 of the Act, If the first be the correct interpretation the highest bid must reach the revenue payable as on 28th March 1937 for which the sale of that separate account had been advertised under S. 6 plus what was payable for Kist chaitra 1933 to Kist Jaistha 1344 according to the Dowl Kistibandi, Exh, J.; otherwise the sale of the separate account was to be stopped by the Collector. That sum would be about Rs. 2000. If, however, the second interpretation be the correct one the Collector could sell the separate account if the highest bid reached ss. 1467-6-6 which was the sum in arrear on the Kist date, namely, 28th March 1937. On the second interpretation there would be no contravention of S. 14 by the Collector for the highest bid for which the separate account was sold was Rs. 1650. This is the position on the facts of the case. The question relating to the interpretation of that part of S. 14, so far as we are aware, is of first impression. For deciding that question the general scheme of the Act as also a part of its preamble and Ss. 10,13,14, 80 and 81 would have to be considered.

17. Generally the engagement made by the Zemindars at the time of the Permanent Settlement of Bengal were to pay revenue in twelve monthly instalments according to the Bengalee Calendar. Section 2 of the Act, which is in the nature of an interpretation clause, enacts that a monthly instalment would become an arrear on the 1st day of the following month, with the result that the Government would be entitled to recover the same only after that date. Section 3 of the Act puts a limitation on the right of the Government where it proposes to recover the same by the summary sale of the estate in arrear under the machinery of the Act by providing that the estate cannot be sold in that manner till a further period of grace, which is to be fixed by the Board of Revenue by issuing notifications in the local Gazette. In estates paying an annual revenue of over ss. 100 the Board has fixed 28th June, 28th September, 12th January and 28th March to be the periods of grace for payment of revenue falling in arrear in terms of S. 2 for the respective quarters. We will denominate them, as they are popularly done, as Kists June, September, January and March, and the instalments payable according to the engagement of the zamindar made at the Permanent Settlement as Doul kist Bysack and so forth. Doul Kist Chaitra would become an arrear on 1th Bysack following. The Government can realise the sum immediately thereafter by suit or under the Public Demands Recovery Act but the Collector cannot sell the estate under Act XI [11] of 1859 till after 28th June following, if the amount be not paid by that date. This is the effect of s. 3. For the purposes of revenue sale under the Act, and so, for the Collector holding the sale thereunder, the Kist dates fixed under s. 3 are of prime importance in respect of a estate or of a separate account in arrear. This difference which follows from Ss. 2 and 3 when the proprietor does not pay a Dowl kist, has a material bearing on the construction of the relevant phrase occurring in s. 14 which we have noticed in the earlier part of our judgment.

18. In the preamble to the Act the legislature enumerates the various objects for which the Act was enacted. One of them was to afford sharers, who had duly paid their shares of the revenue, easy means of protecting their shares from sale under the revenue sale law where there was default of their co-sharers. This the Act accomplishes by allowing them to open separate accounts. Section 10 defines the procedure for opening separate accounts and the effect when the Collector had allowed a separate account to be opened. The liability to sale under the Act is separated from the date of the order of the Collector for allowing the opening of a separata account Manmathanath Mukherjee v. Anangakumar Hukherjee, 45 C.W.N 890 : (A.I.R (28) 1941 Cal. 702) but the liability of the joint proprietors under the Permanent Settlement engagement remains still joint and several.

19. The earliest method adopted by the Government for enforcing punctuality in the payment of revenue was by imprisoning the defaulting proprietor. In this respect if followed the practice of the Mogul times. Regulation XIV [14] of 1793 and III [3] of 1794 gave sanction to that practice, but experience showed that form of coercion, which was attended with many evils, especially it lowered the proprietor in the estimation of his tenants and therefore made it more difficult for him to realise rent and to pay the Government demand, did not produce the desired effect. In 1799 there was a complete change of method. It was considered that the best thing was to make revenue a charge on the estate as it was at the time of its creation and to realise the Government dues by summary sales. The change was effected by Regulation XIII [13] of 1799 and the subsequent Regulations and Act XI [11] of 1859 proceed upon that basis, namely, that revenue is a first charge on the estate itself and the best way of realising it is by sale of the estate itself. There are therefore two considerations when the estate belongs to two or more proprietors: (1) that the proprietors who had opened separate accounts should not suffer for the default of their co-sharers and (2) that the security for Government demand on the estate, for which all the proprietors were jointly and severally liable according to their engagement in spite of the opening of separate accounts, should not be prejudiced. The equitable adjustment of these two is made by ss. 13 and 14 of the Act. Sections 13 and 14 must therefore be regarded as complementary to each other. So the word “due” in both those sections must be given the same meaning.

20. As a separate account can be sold by the Collector under s. 13 only when that account is in arrears in terms of S. 3, that is only when it remains in arrear at the Kist date fixed under that section, the phrase “amount of arrears that may be due” occurring in that section must therefore have reference to the Kist date notified under s. 3. The word “due” must mean there-fore “due at the Kist date mentioned in a notification issued by the Board of Revenue under S. 3.” For the reasons given above the word “due” occurring in para. 1 of s. 14 must in our judgment have the same meaning, and so the phrase in question is equivalent to the phrase “amount of arrears due thereupon to the date of sale for which a sale under the Act could be held on that date…” This interpretation makes s. 80 and 31 fit in properly. If the word “due” had been used in the sense of “due” according to the Dowl Kistibandi of the Permanent Settlement as interpreted by S. 2 of the Act, there would be no meaning in making the purchaser at the revenue sale of a separate account liable for the revenue from a date anterior to the date of his purchase—that is, from the latest date of payment (the Kist data of S. 3) of the arrear for which the sale was held. There would also be no meaning in the Collector stopping the sale, if the bid was just sufficient to cover the arrear up to the said Kist date for which it was advertised for sale and did not reach a greater figure, which would also cover the amount of arrears of the Dowl Kists falling due subsequently, which, in estates paying a revenue of more than Rs. 100, would represent the arrears of three more monthly Dowl kists accruing due subsequently in view of the general practice followed in fixing dates for revenue sales, which are fixed a few days before the next kist date fixed under S. 8; for the amount representing the instalments for these subsequent Bengalee months cannot, in view of S. 31, be credited to Government but must be paid over to the defaulting proprietors or persons who have claims against them, which become subjects of precepts of civil Court. The security for the Government demand would not require it. On this view of the first paragraph of s. 14, we hold that the Collector did not violate the provisions of law when he accepted the bid of Rs. 1650 which was in excess of the amount that became due on 28th March 1937. We do not therefore agree with this part of the learned Subordinate Judge's judgment. Even if the other be the correct interpretation of that phrase we are inclined to hold that it would not be the case of an absence of jurisdiction on the part of the Collector but it would be one of substantial irregularity in the exercise of his jurisdiction, if he did not stop the sale when the bid covered the amount of arrear mentioned in the notification issued under S. 6, but did not cover the further amount that fell due in terms of the Dowl Kist up to the date when the sale was actually held by the Collector. On that view the plaintiff cannot succeed in the suit in view of S. 33 of the Act, as this ground was not specifically taken in their grounds of appeal before the Commissioner of the Presidency Division.

21. Point IV: Section 6 requires the notification of sale to specify the estates or shares of estates which would be sold. At page 260 of the Revenue Sale Manual is given a form of the notification for sale. Column 3 requires the revenue of the whole estate to be specified, column 4 requires a statement as to whether the whole estate is to be sold, column 5 requires exact specification of the share, if a share is to be sold, and column 7 requires the revenue pay able for that share where the share is to be sold. Columns 8 and 9 respectively require specification of the amount of arrears for the whole estate or of the share, as the case may be, for which the sale is to be held. In the case before us as a share only, namely, separate account No. 1, was to be sold, the third, fourth and eighth colums were left blank. In all other respects the sale notification was filled up in accordance with that form and the particulars given were correct. The learned Subordinate Judge held that it was incumbent on the Collector to state in that notification the revenue of the entire estate. We think he is not correct. The form is a combined form for the sale of entire estates, and also of shares. All the columns need not be filled up, but only those that may be appropriate to the case. Where therefore the entire estate is advertised for sale, there would be no meaning in filling up column 7, even if there were separate accounts in respect of that estate, and so where a separate account is to be sold we do not see why it would be incumbent to fill in column No. 3, The view we are taking is in accordance with the decision in Sakina Khatun v. Khirode Chandra, 46 C.W.N 73 : (A.I.R (29) 1942 Cal. 173). More-over the form has no statutory force. All that S. 6 requires is a correct specification of the share to be sold and we hold that this has been done in the case before us. We cannot agree-with the Subordinate Judge on this point also. There in no point in the respondent's argument that a joint notification for the sale of separate accounts 1 and 2 was issued. There was no such thing in fact.

22. Point V: We cannot find anything in the evidence which would justify a finding that defendant 1 was benamidar for Ramesh Chakravarty or Sachin. There are some circumstances which raise a suspicion regarding Jagadish, but as we can arrive at a finding only on, evidence and not on suspicion or surmises, was cannot hold that he was benamdar for Jagadish. There is however good evidence to support the finding that he made the purchase as benamidar of Govinda and we hold accordingly. The fact that defendant 1 has not come forward to depose is a fact which, with other facts, shows that-he is not the beneficial owner but benamidar for somebody and it is not difficult to see who that somebody is. He is a relation of Gobinda, by marriage. He is a stenographer of the civil Court and does not appear to be a landed proprietor of any importance. We do not also know what his resources were and he has kept us in the dark by not coming to the witness box. These are some of the circumstances which lead us to the conclusion that he made the purchase for Gobinda. As we are agreeing with the Subordinate Judge on this point we do not consider it necessary to go into further details.

23. Point VI: On the finding that defendant 1 is benamidar for Gobinda only the fraud pleaded in paras. 10, 11 and 12 of the plaint stands thus. That Gobinda taking advantage of the pending mutation proceedings colluded with the patnidars with the result that the patnidars did not deposit revenue and that after conveying the impression that he himself would deposit the game made default and purchased the valuable property at a nominal price in the benami of his relation, the defendant 1. The question is whether these allegations have been proved, and if so are they sufficient in law to support a decree for reconveyance by defendant 1 and Gobinda in favour of the plaintiffs.

24. That defendant 1 is a relation of Gobinda by marriage is admitted and that he is the latter's benamidar has been proved. There can be no question that the property was purchased at a nominal price. The letters written by Gobinda (printed at p. 107 onwards) during the pendency of the mutation proceedings to Pronab, one of the patnidars, prove that the two were not only on friendly terms but had combined against the trustees in the mutation proceedings. Those letters also prove that confidential conferences were held between them from time to time in Calcutta. The patni had been sold under Regulation VIII of 1819 and had been purchased in Khas by Haran and a suit had been instituted by the patnidars to set aside the sale. It would not be a violent inference if it be held that Gobinda held out hopes to the patnidars that if he was finally successful in having his name and that of his two brothers registered in the Collector's register he would recognise the patni.

25. The pendency of the mutation proceedings was a serious handicap to the trustees. They had lost before the Deputy Collector, who refused their application for mutation and ordered the mutation of the names of the sons of Haran. The matter was pending in appeal before the Collector for some time and at the relevant time the reference made by the latter was pending in the civil Court. They could not realise any rent as their names had not been registered. Section 78 of the Bengal Land Registration Act, prevented them from suing for rent and no tenant would consider that a receipt for rent by them would give him an effective discharge. In fact Mr. Kishory Mohan Chowdhury, one of the trustees, whose veracity we have no reason to doubt, admitted that the trustees were helpless in the matter of payment of revenue. There was no trust fund available and no means to raise money on the security of the trust estate, as there was litigation before the revenue authorities concerning the only property of value included in the trust deed. The trustees had to rely for payment of revenue either on some of the sons of Haran or on the Mozumdars. The evidence discloses that nearly all the sons of Haran except perhaps Narayan were moving in different tracks mostly for their self-interest. The evidence establishes the fact that for some time Jagadish who was named as one of the trustees was trying to protect the trust estate by insisting on the Mozumdars to deposit revenue, but about November 1936, if not a little earlier, he changed his attitude completely. Prom that time we do not find him writing a single letter to the Mozumdars asking them to deposit revenue. His two applications to the Collector in connection with the trustees' appeal in the mutation proceedings show that from that time he was out to demolish the Ayurvedic trust, an attitude which was exactly the attitude of Gobinda, Ramesh and Sachin. The letter of Gobinda to Pronob (Ex. 9) dated 25th April 1937 shows that Jagadish had already joined Gobinda's camp and Gobinda had his ear.

26. The entries in the Touzi ledger (Ex. 30(a)) taken with the other evidence in the case show that for the March Kist 1936 the Mozumdars deposited revenue on 26th June following, just about the date fixed for sale for the default of the said Kist. They paid Rs. 200 towards the June Kist 1936 on 26th September following, which was the date for sale for the default of the June Kist and obtained time to pay the balance. They paid Rs. 1300 which covered the balance of that Kist and practically the whole of the September Kist on 11th January 1937, the date fixed for sale for the September Kist and Narayan paid the balance which so far as the arrears of revenue were concerned amounted to about a rupee or so. The arrears for Kist January 1937 were paid after its default by Gobinda on 18th March 1937 as he had given an undertaking to this Court. That payment was made two days before the date fixed for the sale. Nobody paid the March Kist of 1937 and for that default the separate account was sold and purchased by defendant 1. The deposit made by the Mozumdars up to 26th September 1936 towards arrears of revenue may have been made partly on account of pressure from Jagadish who was at that time keen in preserving the trust, partly on account of Gobinda's request and partly for their self interests.

27. Mr. Kishory Mohan Choudhury states that the trustees were helpless in the matter of paying revenue. At p. 110 of the printed record he states that he asked Jagadish and Jyotish Saraswati to see that the patnidars deposited revenue. He or the other trustees did not however directly ask the patnidars to deposit the revenue. His evidence is materially corroborated by letters which Jagadish wrote to the patnidars. The latter insisted for a time that they should deposit, but later on, at least from November 1986, if not from before, he changed his attitude towards the trust and remained silent. There is evidence that Jyotish Saraswati, however, kept a close watch in the matter of deposit of revenue. At that page in answer to the Subordinate Judge Kishory Babu stated that Jyotish Saraswati had informed him before March 1937 that the patnidars had refused to pay revenue. He then asked Jagadish, Suresh, Gobinda, Narayan and Suresh's eon Bahadur, to pay but he got no reply from them. Afterward from the talks he had with Narayan he understood that steps would be taken by Narayan to protect the estate from a revenue sale. He does not speoity the time when all this took place. All he says is that it was before March 1937. It would have been batter if he was asked further questions asking him to fix more precisely the time. There is, however, good evidence which proves that all this took place between 26th September 1936 and 11th January 1937. The Mozumdars had paid a part only of Kist June 1936 on 26th September 1936 and Narayan did actually take steps to prevent the sale for the balance of the June kist and for the arrears of the September kist, 1936 by keeping ready in hand the money that would be required to meet those arrears. In fact he went with the requisite sum of money to the Collector's office on 11th January 1937, the date fixed for the sale and paid the balance after the Mozumdars had deposited Rs. 1300 on that date (Ex. DD). The Mozumdars who had already refused to pay— that is Kishory Babu's evidence—paid the said sum by reason of Gobinda's letter to them dated 1st January 1937 (Ex. G(9)). That letter is a very important piece of evidence. It establishes the fact that the Mozumdars paid at the very last moment only because Gobinda had asked them to do so. He writes in that letter that Jyotish Saraswati had arranged with a man to buy at the revenue sale to be held on 11th January 1937. The inference we draw from that letter is that Gobinda had previously asked the Mozumdars not to pay revenue, so that he himself might purchase at the revenue sale at a convenient price, and if he was successful they, the Mozumdars, would have nothing to fear, for he would have, notwithstaading the patni sale, recognised their patni, bute when he found out that his rival, namely, one of the trustees had arranged to bid he changed his modus operandi. He asked the Mozumdars to deposit the arrears of revenue on that date to keep off a rival with the hope that he may have an opportunity later on to purchase the same at a low price for a later default. This letter supports to a considerable extent the case of the plaintiffs as made in para. 10 of the plaint.

28. Kist January 1937, fell due on 12th January 1937, a day before the arrears of the previous kists were cleared off by the payments made by the Mozumdars and by Narayan. That kist was not paid in time with the result that the Collector advertised the property for sale for 20th March 1937. Narayan moved this Court on 9th March 1937, for the appointment of an administrator pendente lite to save that property from a re-venue sale and also to preserve other properties of Haran which had been attached and advertised for sale for non-payment of income-tax. A rule was issued in terms of the prayer. That rule was heard on 17th March following. Gobinda gave an undertaking to pay the January kist the next day. He kept his undertaking by depositing the sum in the Collectorate on 18th March. The rule was finally heard on 19th March when Gobinda was appointed administrator pendente lite with the limited purpose of drawing money from the Bank and paying the income-tax demand. By undertaking to pay the revenue for that kist and by paying the same he avoided the appointment of another person as administrator pendente lite. The March kist 1937 was not paid by any one on the due date, which was 28th March, and the Collector advertised the sale for 22nd June 1937. On 17th May 1937, Gobinda was allowed by the learned District Judge to withdraw from the Imperial Bank Rs. 8000 which sum was covered by the succession certificate issued to him. (Exhibit 23(N) 265). The application for letters of administration with the will of Haran annexed was pending in his Court. Eight days later he again applied to the District Judge for withdrawing the balance (Rs. 31,000 odd) covered by that succession certificate. The learned District Judge had restrained all parties from realising moneys covered by their succession certificates till the disposal of the proceedings for letters of administration pending before him without his permission, That application is Ex. (DD(1)-294). In para. 4 he stated that he needed the money as he was required to keep as before Rs. 1300 for the payment of revenue for kist March 1937. He made a statement in para. 7, which is hardly credible, that he had already spent the sum of Rs. 8000 which he had got eight days ago. His application was refused. Even if that statement in para. 7 be true he could have raised Rs. 1300 by again making an overdraft from the Imperial Bank, as according to his own statement he had redeemed his overdraft account a few days ago by paying from the sum of Rs. 8000 which he had drawn after 17th May 1937. The statements made by him in para. 4 of his application would give the impression to the four trustees, the Kumar of Dighapatia, Kishory Babu Bhawani Babu and Jyotish Saraawaki that Gobinda was under an obligation to pay the revenue payable for kist March 1987 and meant to pay the same. That statement was made to lull them to a sense of false security. The allegations made in para. XI of the plaint thus finds support.

29. The direct evidence is given by Pranab and Hikmatulla. This evidence is that Pranab sent Hikmatulla to Krishnagar on 22nd June 1937, (the date fixed for the sale) to deposit the revenue for the March kist with instructions that he was to act on the instructions of Gobinda. Hikmat met Gobinda who asked him not to deposit the money, with the result that the sale was held and Gobinda purchased in the benami of his relation, defendant 1. Gobinda denies that he was present at Krishnagar on that date and says that he was in Calcutta on that date, but we cannot believe him. If he was the real purchaser, and we have already found him to be so, he must have been at Krishnagar on that day at least for the purpose of giving instructions to the pleader Mr. Monindra Nath Biswas, who offered bids ostensibly for defendant 1, at the time of bidding. That pleader would have at least required to know the highest amount to offer, if there was eventually competitive bidding. As Pranab was an accomplice of Gobinda at that time ordinarily it would not have been safe to rely on his statement or that of his officer Hikmat, but his evidence and the evidence of Hikmat is rendered probable by the documentary evidence which we have noticed above, so we believe their statement. Our conclusions, therefore, are that Gobinda colluded with the Mozumdars, created the impression that he would deposit the revenue and lulled the trustees but actively prevented the deposit by forbidding the Mozumdars at the very last moment and effected the purchase in the benami of defendant at a ridiculously low price. This in our judgment amounts to fraud. He got the property through fraud and so cannot be allowed to retain the benefit of the acquisition. The property must be reconveyed by him and his benamidar defendant 1, to the plaintiffs on receipt of Rs. 1650, the price paid for it at the revenue sale. Cases where reconve yances have been ordered are mostly cases where a co-sharer had made an intentional default and had purchased at the resulting revenue sale either in his own name or in benami but that class does not exhaust the whole list. The general principle is that property acquired by fraudulent contrivance cannot be retained by the acquirer but must be conveyed to those whose rights have been lost by the fraud. This view is supported—if support is needed at all from case law—by the decisions in Akshoy Kumar v. Ahmed Ali, 69 Cal. 180 at p. 183 : (A.I.R (19) 1932 Cal. 434) and Satish Kanta Roy v. Satish Chandra, 24 C.W.N 662 at p. 671 : (A.I.R (7) 1930 Cal. 26). The last mentioned decision of this Court was affirmed by the Judicial Committee of the Privy Council sub nomine Bon Behary Chatterjee v. Satish Kanta Roy? 39 C.L.J 165 : (A.I.R (10) 1923 P.C 73). The result is that the plaintiffs' suit is decreed on prayer (f) of their plaint. In lieu of the decree passed by the learned Subordinate Judge we direct that defendant 1 (Romesh Chandra Roy) and defendant 4 (Gobinda Chandra Chakravarty) do execute and register at their costs a conveyance of the property in suit in favour of the plaintiffs on receipt of Rs. 1650. The learned Subordinate Judge would ask the plaintiffs to deposit in his Court Rs. 1650 within such time as he may think proper. On the deposit being made he would settle the terms of the conveyance and require those defendants to engross the same and to execute and register the same within such time as he may fix. Those defendants are to pay for the stamp duty and the registration fees. If they do not, then he would ask the plaintiffs to engross the same on proper stamp and he would on behalf of those defendants execute the same and have the same duly registered. The costs which the plaintiffs may have to incur on account of stamp duty and registration fees would be recovered by them from those defendants. Although Jagadish is till in name a trustee we do not order the conveyance to be executed in his favour also, as we consider that by his conduct he has forfeited his right to be a co-trustee of the Ayurvedic trust.

30. The plaintiffs would be entitled to mesne profits from defendants and 4. Defendants L and 4 would jointly and severally pay the plaintiffs' costs of the suit and of the appeal. Other parties would bear their respective costs throughout. In view of the order which we have made in the appeal in regard to costs no separate order is necessary on the cross-objections.

Blank, J.:— I agree.

G.N

31. Order accordingly.